Legal Basis for Screening, Testing and Contact Tracing Protocols

The University’s policies and procedures are consistent with federal and state law and regulation. The legal basis for these policies and procedures is summarized below:

Summary of Laws Applicable to Testing Employees

As a recipient of federal funding, Montclair State University must comply with the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 (collectively “ADA”) which prohibit discrimination of an individual based upon a disability. These laws generally prohibit the University’s inquiry into an employee’s medical condition and generally consider such inquiry to constitute discrimination. However, in response to COVID-19, the Equal Employment Opportunity Commission issued guidance, last updated on June 17, 2020, that a person with symptoms of COVID-19 in the workplace presented a substantial threat. The EEOC advised that, in order to maintain a safe workplace, the University may:

  1. take an employee or prospective employee’s temperature.
  2. ask if the employee or prospective employee is experiencing symptoms of COVID-19 (as identified and updated by the CDC).
  3. require the employee or prospective employee to go home if symptoms of COVID-19 are observed or present.
  4. require the employee to provide, as a condition to return to work, a fitness for duty certification indicating they have recovered from COVID-19 or are not diagnosed with COVID-19.
  5. require an employee or prospective employee to take a test to determine if they have the COVID-19 virus before returning to work or starting employment.

The ADA requires this information to be kept confidential and stored separately from an employee’s personnel file. Accordingly, the University may require employees and prospective employees to be screened and tested for COVID-19 at the present time. Because guidance from public health authorities is likely to change as the COVID-19 pandemic evolves or improves, the University’s policies and procedures in regard to testing may change to remain in compliance with the most current guidance on maintaining workplace safety.

Summary of Laws Applicable to Testing Students

The ADA also generally prohibits the University’s inquiry into a student’s medical condition and considers such inquiry as discrimination. Instead, the ADA places the burden on students to disclose their medical condition or disability and request a reasonable accommodation (34 C.F.R. 104.44). As the enforcing agency for compliance with the ADA by educational entities receiving federal funds, the U.S. Department of Education Office of Civil Rights issued guidance on March 16, 2020 recommending that all schools implement the CDC’s recommendations to avoid a claim of disability discrimination or other civil rights laws, and make decisions based on local health needs and concerns. On June 30, 2020, the CDC provided guidance on symptom screening and viral testing of students displaying symptoms of COVID-19, and viral testing of asymptomatic persons with recent known or suspected exposure to COVID-19. The CDC did not recommend the testing of all students before permitting them to return to school but recognized that certain institutions intend to do so and provided suggestions.

In addition to the ADA, the Fourth Amendment of the U.S. and N.J. Constitutions are applicable to Montclair State University as a public entity and prohibit unreasonable searches and seizures without an individual’s consent. A search occurs by a government entity if it infringes on an individual’s expectation of privacy or involves a government intrusion. It should be anticipated that a public university taking a student’s temperature, requiring a student to be tested for COVID-19, or participating in mandatory contact tracing would likely be deemed a search. However, the intrusiveness can be mitigated by opting for temperature scans or non-invasive tests. Moreover, searches are permitted without a warrant as reasonable under the following exceptions to the Fourth Amendment: 1) they are not being conducted to investigate a crime; or 2) there are exceptional circumstances in which special needs, beyond the normal need for law enforcement, would make obtaining a warrant and showing probably cause impracticable. These exceptions may be relied upon by higher education to assert the need for health-related screening, temperature checks, and testing due to COVID-19. Separate from these exceptions, a public entity may undertake a search where probable cause exists. If an individual is demonstrating COVID-19 symptoms and poses a danger to others, that circumstance would likely be sufficient probable cause to mandate testing for COVID-19.

Information that is collected by the University from students as part of symptom screening and testing must be kept confidential under the Family Educational Right to Privacy Act. FERPA prohibits the University from disclosing personally identifiable information from students’ education record without the prior written consent by the student unless an exception to FERPA applies (20 U.S.C. §§ 1232g(b)(1) and (b)(2); 34 C.F.R. §§ 99.30 and 99.31). FERPA would permit disclosure to appropriate parties (e.g. law enforcement, local health officials, medical personnel, public health authorities and the student’s parents) without prior written consent from a student in connection with an emergency and where the information is necessary to protect the health or safety of students or other individuals (20 U.S.C. § 1232g(b)(1)(I); 34 C.F.R. §§ 99.31(a)(10) and 99.36). Therefore, information concerning a student who tested positive for COVID-19 could be disclosed to appropriate public health authorities without a student’s consent to facilitate contact tracing in response to an outbreak on campus. However, if the University intends to share student information to create a tracking system in order to identify an outbreak before an emergency happens, this would require consent from students under FERPA.

If the University does not perform testing and will need access to test results from medical providers used by students, the Health Insurance Portability and Accountability Act (“HIPAA”) would require the student to execute a written authorization permitting the University access to such medical records.

Last Modified: Monday, August 3, 2020 11:00 am